Monday, September 13, 2021

Precedential No. 23: TTAB Refuses to Allow Withdrawal of Express Abandonment of Opposed Application

In a straightforward application of Trademark Rule 2.68, the Board denied Applicant Grüne Erde's motion for relief from judgment after Grüne Erde had filed an express abandonment of its opposed multi-class application for the mark shown below. The Board had deemed the application abandoned in its entirety without prejudice (since the opposers had consented to the withdrawal) and it dismissed the opposition without prejudice. Grüne Erde claimed that it had mistakenly failed to limit the abandonment to its Class 3 goods, the only target of the opposition, and it asked the Board to allow it to withdraw the abandonment. No dice, said the Board. Rwachsberg Holdings Inc. and Apollo Health and Beauty Care Inc. v. Grüne Erde Beteiligungs GmbH, 2021 USPQ2d 926 (TTAB 2021) [precedential].

FRCP 60(b)(1) provides that a party may be relieved from a final judgment, order, or proceeding because of "mistake, inadvertence, surprise, or excusable neglect." However, Rule 2.68 "unequivocally states that '[a] request for abandonment or withdrawal may not be subsequently withdrawn.'" Therefore, Grüne Erde's requested withdrawal of its express abandonment was impermissible.

End of story.

Read comments and post your comment here.  

TTABlogger comment: So does Grüne Erde file a new application? 

BTW: Why didn't the Federal Rule supersede Trademark Rule 2.68? Rule 2.116 states: "(a) Except as otherwise provided, and wherever applicable and appropriate, procedure and practice in inter partes proceedings shall be governed by the Federal Rules of Civil Procedure."

Text Copyright John L. Welch 2021.


At 9:48 AM, Anonymous Laura Day said...

The TTAB rule is procedural--once a request is made, there is no taking a step back before a judgment issues based ont that request. There is no conflict between an inability to withdraw a request and a later opportunity to seek relief based on a mistake. This is an overly broad application of the rule, regardless of which takes precedence.


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